Section 11 of CPC, 1908- Res Judicata

Also known as ‘rule of conclusiveness of a judgment’, the doctrine of res judicata simply
states that once a matter is finally decided by a competent court, a party is barred to reopen it
in a subsequent litigation, provided it is contested on the same issue. Its literal meaning is a
matter that is finally decided by the court (‘Res’- Subject Matter; ‘Judicata’- Decided).

Rationale: In absence of such a rule, there will be no end to litigation and it is in the interest
of the state to end a suit. In the landmark case of Satyadhyan Ghosal v. Deorjin Debit
(1960), the Supreme Court explained the doctrine at length:

“The principle of res judicata is based on the need of giving a finality to judicial decisions,
What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies
as between past litigation and future litigation. When a matter, whether on a question of fact
or question of law, has been decided between two parties in one suit or proceeding and the
decision is final, either because no appeal was taken to a higher court or because the appeal
was dismissed, or no appeal lies, neither will be allowed in a future suit or proceeding
between the same parties to canvass the matter again.”

General Meaning

Suit (Future and Past)-------Competent Court (Jurisdiction)--------Matter Conclusively

Decided (No appeal lies as explained above)-------Same Parties (or their
representatives)-------Same Cause of Action(Possession, Partition, Ownership etc.)-------- xxx
Subsequent Suit xxx (barred by Res Judicata)

Let’s assume the doctrine of res judicata was never introduced. There are two parties A and B
and A files a suit against B for the possession of a property. Court X passes the decree against
A and therefore A loses the case. However, A again files a suit against B for the possession of
the same property and this time Court X (maybe different judge) passes the decree in favor of
A. This would lead to conflict as to whether former decree should be enforced or the latter.
Therefore, Doctrine of Res Judicata is required to deal with such conflicts.
Objective of Section 11

It is based on 3 latin maxims:

i. Nemo debet bis vexari pro una et eadem causa- No man should be vexed (troubled)
twice for the same cause;
ii. Interest reipublicae ut sit finis litium- It is in the interest of the State that there should
be an end to a litigation;
iii. Res judicata pro veritate occipitur- A judicial decision must be accepted as correct.

Based on public policy (ii) and (iii) and on the concept of justice, equity and good conscience
(i). It applies to civil suits, execution proceedings, arbitration proceedings, taxation matters,
industrial adjudication, writ petition, administrative orders, interim orders, criminal
proceedings etc. In the case of M. Nagabhushana v. State of Karnataka (2011), the
Supreme Court held that in absence of such a doctrine, there would be no end to litigation. A
rich and malicious litigant may succeed in vexing his poor opponent by repetitive suits and
actions resulting in relinquishing his rights. Such situation must be prevented.

The doctrine of Res judicata has a universal application and is accepted rule of law. In the
landmark case of Daryao v. State of U.P. (1961), the Supreme Court held the doctrine of res
judicata on a still broader foundation. A bunch of petitions were filed before Allahabad High
Court under Article 226 and were subsequently dismissed. Instead of appealing, the
petitioners filed writ petition on same grounds and asked for same relief under Article 32.
The respondent raised a contention on grounds of maintainability as the decision of the High
Court would operate as res judicata. The Supreme Court upheld the contention and dismissed
the petitions. If a petition under Article 226 is dismissed on merits, then the doctrine of res
judicata would apply to the same petition that is again filed under Article 32.

Essential Conditions of Res-Judicata

1. Suit must be maintainable and be of civil nature. [Civil Nature explained before in
Jurisdiction)
2. There must be 2 suits: Prior and Subsequent Suit.
 3. Parties in both suit must be same or litigating under same title. [Same title here
implies if the parties raised the ground of ownership on basis of sale deed, then the
same title should be in question in the subsequent suit i.e. ownership on basis of sale
deed.]
4. Matter in issue must be decided by Court of Competent jurisdiction. [Pecuniary,
Territorial, Original etc.]
5. Matters must be directly and substantially in issue [detailed discussion below]
6. Heard and finally decided in the former suit [detailed discussion below]

Matters Directly and Substantially in Issue: Explanation III

A matter directly and substantially in issue in a former suit will operate as res judicata in a
subsequent suit. It also includes matters that are actually and constructively in issue.
‘Directly’ means directly, at once, immediately, without intervention. In the case of
Amalgamated Coalfields Ltd. v. Janapada Sabha (1964) it was held by the Supreme Court
that a fact cannot be said to be directly in issue if the judgment stands whether that fact exists
or does not exist. No hard and fast rule can be laid down as to when a matter can be said to be
directly in issue and it depends upon the facts and circumstances of each case. Word
‘Directly’ simply means any fact directly associated with an issue.

‘Substantially’ means essentially, materially or in a substantial manner. It is something short

of certainty but indeed more than mere suspicion. It means facts which are substantial for
determination of an issue. A matter can be said to be substantially in issue if it is of
importance for the decision of a case. No rule of universal application can be laid down as to
when a matter can be said to be substantial except when the parties by their conduct treated it
as a substantial one.

The question whether or not a matter is “directly and substantially in issue” would depend
upon whether a decision on such an issue would materially affect the decision of the suit. The
question has to be determined with reference to the plaint, written statement, issues and
judgment. No rule of universal application can be laid down and the question should be
decided on the facts of each case.
A matter can be said to be constructively in issue when it “might and ought” to have been
made a ground of defence or attack in the former suit. We would discuss this in detail below
under the heading of constructive res-judicata.

Illustration:

A files suit against B for the declaration of title of certain lands and claims rent of those
lands. B denies the title and such rent arising thereof. Here the title of the land and claim for
rent are matters directly and substantially in issue against which a relief is sought by A.

A sues B for possession of certain property on the basis of sale deed. B makes a plea that the
deed is fictitious. The plea is upheld after the necessary enquiry and the suit is dismissed.
After some time, A again sues B for possession of other properties on the basis of same
fictitious deed. The suit is barred as the fictitious nature of the sale deed was actually in issue
in the former suit directly and substantially.

Constructive Res Judicata [Explanation IV of Section 11]

It is mentioned in Explanation IV to Section 11 of the Code as an ‘artificial form of res-

judicata’, and provided that if a plea could have been taken by a party in a proceeding
between him and his opponent, he should not be permitted to take that plea against the same
party in a subsequent proceeding with reference to the same subject-matter. It is against the
public policy and for such a course is allowed to be adopted, the doctrine of finality of
judgments pronounced by courts would also be materially affected.

Practical Approach

1. Suppose A claimed for possession of house. Therefore, the cause of Action is

possession of house. A can raise several grounds (available) to prove the same. For
instance, he can either show the will, or the sale deed, or by way of adverse
possession, or he is the Mortgagor, or the Landlord. If he takes one of these grounds
in the former suit and then takes another ground in the subsequent suit, such
subsequent suit shall be barred by Res Judicata as long as it is contested on the same
cause of action.
 2. Suppose A and B are parties to the suit. A files a suit against B for possession of the
property and decree is passed in the favour of A. Then, A files another suit for mesne
profits on the same property. Will both the matters be treated as directly and
substantially in issue. Doctrine of Res Judicata is only applied on the same relief.
Since, the cause of action is different for mesne profits it won’t be barred by Res
Judicata. However, the same suit shall be barred by the application Order II R.2 of the
CPC that states in suits where different cause of actions are involved and were
available to the plaintiff, such cause of actions shall be claimed in the same suit and if
they are not, the law will assume you have voluntarily waived off such claim and
hence subsequent suit cannot be entertained.

3. ABC law firm is not a registered partnership firm. It files a suit for recovery suit
amounting ‘X’ rupees against DEF Company. The court rejects such suit on the
ground of non-registration. Subsequently, ABC law firm registers itself and files a
recovery suit. Here, the suit won’t be barred by Res Judicata as a suit rejected on
technical grounds or purely deals with question of law is not subject to the said
doctrine.

In the case of State of U.P. v. Nawab Hussain (1977) S.I. of Police was dismissed by D.I.G
of Police. He challenged the order of dismissal by filing a W.P. in the High Court on the
ground of not being provided with a reasonable opportunity of being heard. The petition was
negatived and hence dismissed. He then filed a suit and said that D.I.G. never had the proper
authority to dismiss as he was appointed I.G.P. The Trial Court, the first appellate court as
well as High Court held it was barred by constructive Res Judicata.

Also read the case of Devilal Modi v. STO,(pg 84) (Order of Assessment challenged
u/Art. 226) (Appeal 32-dismissed-additional ground missing) (Another ground, Art.226,
-SC rejected, need to draw a line)

-pg 82 Workmen v. Board of Trustees, Cochin Port Trust (Ratio)(Definition-

Constructive Res Judicata)

Applicability of Res- Judicata

 i. It applies to question of fact.
ii. It applies to mixed question of fact and law.
iii. It does not apply to technical grounds.
iv. It does not apply to cases dealing with pure question of law.

If A files a suit against B for possession of property on the grounds of heirship. The court
rejects such suit. Thereafter, A files another suit against B on the same cause of action under
the grounds of adverse possession. This is again barred by res judicata.

Matters Heard and Finally Decided (Read with Explanation 5)

The expression “heard and finally decided” means a matter on which the court has exercised
its judicial mind and has after argument and consideration come to a decision on a contested
manner. It is essential that it should have been heard and finally decided. [Kushal Pal v.
Mohan Pal, (1976, SC)]

It is heard and finally decided when:

1. When no appeal lies to an order or decree.

2. When appeal is finally decided by the court.
3. When it is barred by law of limitation.

Doctrine of Res Sub-Judice is applied where the cases or matters are pending and not finally
decided.

Res Judicata between Co-Defendants

Doctrine of Res Judicata also operates between co-defendants and co-plaintiff. The following
conditions are required to be fulfilled in order for res judicata to operate between co-
defendants:

1) There must be a conflict of interest between co-defendants;

2) Necessary to decide such conflict in order to give relief to the plaintiff.
 3) The question between the defendants must be finally decided; and
4) Defendants were necessary or proper parties in the former suit.
Illustration

A sues B, C and D and in order to decide the claim of the A, a will has to interpreted by the
court. The decision regarding the construction of the will on the rival claims of the defendants
will operate as res-judicata in any subsequent suit by any of the defendants against the rest.

The test of res judicata between the co-defendants was laid down in the famous English case
of Cottingham v. Earl of Shrewsbury (1843) in the following words:

“If a plaintiff cannot get at his right without trying and deciding a case between co-
defendants, the Court will try and decide the case, and the co-defendants will be bound. But
if the relief given to the plaintiff does not require or involve a decision of any case between
co-defendants, the co-defendants will not be bound as between each other by any proceeding
which may be necessary only to the decree the plaintiff obtains.”

The SC in Mahboob Sahab v. Syed Ismail (1995) held that the doctrine of res judicata
between co- defendants should be applied with great care and caution because fraud is a
collateral act which vitiates the most solemn proceedings of courts of justice. If a party
obtains a decree from the court by practicing fraud or collusion, he cannot be allowed to take
the plea matter is res judicata and cannot be reopened.

Applicability of Res-Judicata in Writ Petitions

Though time and again it has been held that S.11 of the CPC, 1908 does not apply to the writ
petitions however doctrine of res judicata is applicable to matters in controversy in
proceedings under Art. 32 or Art. 226 of the Constitution from operating as res judicata in
subsequent suits. The Doctrine was explained in M.S.M Sharma v. Dr. Shree Krishna
(1960) wherein the SC for the first time held that the general principle of res judicata applies
even to writ petitions filed under Article 32 of the Constitution of India. Thus, petition once
filed under Art. 32 was dismissed by the court, subsequent petition of same nature is barred.
Similarly, it applies to Art. 226 and once a petition is dismisses on merits, the decision would
continue to bind the parties unless it is modified or reversed in appeal or in other appropriate
proceedings permissible under Constitution.

As held in Daryao v. State of U.P. (above), it would not be open to a party to ignore the said
judgment and again move the HC under Art. 226 or the SC under Art. 32 on the same facts
and for obtaining orders or writs. The SC placed the doctrine on a higher footing, by
considering and treating the binding character of judgments pronounced by competent courts
as an essential part of the rule of law.

Summary Dismissal

In cases where the petition is dismissed by the court at the threshold without admitting it for
final hearing, the question may arise whether such a dismissal is barred by res judicata or not.
There is no hard and fast rule that can be laid down and it would depend on facts and
circumstances of each case and upon the nature of the order. If the order is dismissed on
merits then the res judicata will operate but if it is dismissed by the default of petitioner and
he was guilty of latches (basically, if the order is dismissed on technical grounds as discussed
above on pg 6) or that he had an alternative remedy then the res judicata will not operate.

If the petition is dismissed at the threshold without passing a speaking order then such
dismissal cannot be treated as creating a bar of res judicata even though the such dismissal
implies that there was no substance in the petition at all. Since it is impossible to read the
mind of the court as to what factors weighed in for dismissal, it makes it difficult and unsafe
to hold that such summary dismissal is on merits and thereby barred by res judicata.

As held in Daryao v. State of U.P., the summary dismissal does not affect the jurisdiction of
the court to entertain a fresh petition. If the petition is dismissed as withdrawn it cannot be a
bar to a subsequent petition under Article 32 because in such a case there has been no
decision on merits by the court.

Constructive Res Judicata

The position was finally settled regarding whether the constructive res judicata applies to writ
petition in the case of Devilal Modi v. STO (1965) wherein the Supreme Court observed:

“This rule postulates that if a plea could have been taken by a party in a proceeding between
him and his opponent, he would not be permitted to take that plea against the same party in a
subsequent proceeding which is based on the same cause of action; but, basically, even this
view is founded on the same considerations of public policy, because if the doctrine of
constructive res judicata is not applied to writ proceedings, it would be open to the party to
take one proceeding after another and urge new grounds every time; and that plainly is
inconsistent with considerations of public policy…”

Therefore, the rule of constructive res judicata is also applicable to writ proceedings on the
ground of public policy.